Ontario Labour Relations Board
[1993] OLRB Rep. December 1260
3527-92-U William A. Curtis, Applicant v. The Communications, Energy & Paperworkers Union of Canada, The Canadian Paperworkers Union, Responding Party
BEFORE: R. 0. MacDowell, Alternate Chair.
DECISION OF THE BOARD; December 2, 1993
I
1This is the complaint of William Curtis, who contends that the responding party has contravened section 69 of the Labour Relations Act.
2The named respondent is The Communications, Energy & Paperworkers Union of Canada ("CEPU"). The CEPU was formed a year or so ago, as a result of the merger of the Canadian Paperworkers Union ("CPU"), the Communications Workers Union and the Energy and Chemical Workers Union - three formerly independent trade union organizations. As a result of that merger, the CPU, as such, no longer exists. Nevertheless, for convenience in this decision, I will continue to refer to the "CPU", as Mr. Curtis does in this complaint. The allegations in the complaint are aimed at the CPU and its officers rather than the CEPU.
3Mr. Curtis was at one time the president of CPU Local Union 134. CPU Local 134 consisted of employees working at an Abitibi-Price papermill in Thunder Bay, Ontario. That papermill was closed in the Spring of 1991. It has not reopened. For practical purposes, therefore, CPU Local 134 has ceased to exist - whatever its relationship with the CPU might have been, and whatever its notional relationship may now be with the CEPU.
4The allegations in this complaint focus, primarily, upon the actions of certain officers of the CPU in 1990-91, when the CPU was still an independent entity. I will outline some of these allegations below. However, in order to appreciate my disposition of this case, it is necessary to sketch in some background. As will be seen, this is neither the first complaint which Mr. Curtis has filed with the Board, nor is it the first complaint in which he has made these assertions.
5It will be convenient to review Mr. Curtis' prior complaints in chronological order.
II
6On September 13, 1991 Mr. Curtis filed complaint No. 1981-91-U. In that complaint, he made a variety of allegations. Some of these charges involve the 1990 CPU negotiations with Abitibi-Price, the relationship of these negotiations to CPU collective bargaining elsewhere in Canada, and the ratification of the collective agreement which would apply in Thunder Bay. Other allegations involve a three-day suspension which Mr. Curtis received in 1989, his conduct in an allegedly unlawful strike which resulted in his discharge in February 1991, Mr. Curtis' role as editor of a newsletter said to be critical of the (then) officers of the CPU, whether Mr. Curtis did or did not misuse union property to produce that newsletter, and whether there was something improper about charges brought against him under the CPU Constitution in April-May 1991.
7A number of the allegations in complaint 1981-91-U touch upon the internal politics of Local 134, or the relationship of Local 134 to the CPU and its national officers, or the status of Mr. Curtis as local president (or former local president) to speak on behalf of the members of Local 134. There was also a dispute about the status or rights of the individual selected to replace Mr. Curtis, who was entitled to choose counsel in an arbitration proceeding involving Mr. Curtis, and who could select the "union nominee" to such board of arbitration. There were questions about the company's obligation to recognize Mr. Curtis once he was no longer an employee (i.e. after his discharge for involvement in a work stoppage) and Mr. Curtis' relationship with others in the local. Finally, there were miscellaneous allegations about the treatment of other employees (Allan, Rubenick) in 1990-91.
8The union (then the CPU) and the company both retained counsel and filed a Reply to these various allegations.
9The union's Reply denies any breach of the Act, and sets out the union's perspective on both the political wrangles within Local 134, and the way in which it handled Mr. Curtis' various grievances - particularly the one arising from his discharge in February 1991, shortly before the closure of the Thunder Bay mill. That grievance was important since, for a time at least, there was an issue about Mr. Curtis' entitlement to severance pay because he had been discharged and therefore was no longer actively employed at the time of the mill closure. I have used the phrase "for a time at least" because in December 1991 there was a settlement of the complainant's discharge grievance, which gave Mr. Curtis a severance package based on a formula broadly similar to that made available to other employees actively at work at the time the mill shut down.
10Mr. Curtis was not happy with that settlement. Indeed, both then and now he complains about the way in which it was structured and presented to him and to the members of Local 134 for ratification. But the settlement did provide him with severance pay in the sum of $50,723.45, and pension enhancement in the sum of $131,898.29 - both of which he accepted. And that acceptance was central to the employer's Reply.
11The employer's Reply focuses primarily upon the severance package. The employer was not concerned about the factional disputes within Local 134, or the relationship between Local 134 and the "parent" CPU. The employer took the position that if the settlement was being challenged because of some alleged union impropriety in the way that it was obtained or ratified, Mr. Curtis was obliged to repay the amount received, and "take his chances" at the discharge arbitration that he had earlier demanded. He could not accept the money from the company, then challenge the procedure by which it had been obtained.
12The employer submitted that it had decided to treat Mr. Curtis like other employees only to avoid an expensive and by then "academic" arbitration of the propriety of the complainant's discharge some months before. The company maintained that it had just cause to discharge the complainant as a result of his activities in connection with an unlawful strike, and only agreed to treat Mr. Curtis like other employees to avoid an arbitration exercise of doubtful practical utility, but obvious cost. To avoid that costly process, the company largely disregarded Mr. Curtis' termination, and calculated his severance pay in substantial accordance with his accumulated seniority - i.e. in much the same way that it dealt with other workers who were terminated when the mill closed. By the time complaint 1981-91-U was filed, of course, the mill had been closed for some months and there was no prospect that Mr. Curtis would ever be reinstated to active employment. There was no "job" to which Mr. Curtis could be reinstated.
13The employer's position was supported by the CPU, which submitted, in addition, that the Board should exercise its discretion not to hear the complaint because no useful public or labour relations purpose would be served by doing so.
14On February 18, 1992 Mr. Curtis filed a second complaint: No. 3671-91-U. This complaint repeated and, to some extent amplified, the allegations which he had raised five months earlier in complaint No. 1981-91-U. As before, there are assertions about: the 1990 ratification process; Mr. Curtis' role as editor of a newsletter; the three-day suspension in 1989; the dispute about who spoke for local members, and who should choose counsel and nominees for an arbitration board; the propriety of charges under the CPU Constitution; the complainant's role in the allegedly unlawful strike which led to his discharge and grievance; the employer's refusal to recognize the complainant as an employee spokesman after his discharge, and perhaps after his ouster as local president; the shut-down and severance settlement; and the problems of employees Allan and Rubenick back in 1990.
15As before, the responding parties, through their counsel, filed Replies. Among other things, it was repeated that the complainant's severance package was equivalent to the one made available to other employees similarly situated, that the Local 134 membership had accepted the settlement, that the settlement was reasonable given the likely outcome of any arbitration of the complainant's discharge, and that Mr. Curtis could not accept the severance package and challenge it at the same time. The union reiterated that the mill had closed in April 1991, and that the complaint was vexatious and politically motivated. In the union's submission, litigation would serve no public or labour relations purpose, because much of it involved internal union politics which were beyond the ambit of section 69, and, in any event, there was no basis for the particular remedies that Mr. Curtis sought.
16This outline gives the "flavour" of the two earlier complaints.
17A pre-hearing conference was held to consider the scope of this dispute, the probable length of the hearing, and the possibility of narrowing the issues. The pre-hearing conference Vice-Chair concluded that the hearing could very well be a protracted one. There were significant disputes about the facts, as well as disputes about whether various issues could, or should, be dealt with under section 69. As I have already noted, there were "preliminary" arguments to dismiss on various grounds, or to proceed on conditions, or that certain matters were beyond the ambit of section 69.
18Meanwhile, in March 1992, Mr. Curtis filed a third complaint (No. 3891-91-U). This new complaint alleged that Local 134 and/or the CPU had failed to provide financial statements as required by section 87 of the Act. I shall return to this complaint below.
19Complaints 1981-91-U and 3671-91-U were listed for hearing in the Summer of 1992. Quite a number of hearing days were contemplated, but the first two days were set aside to deal with preliminary issues (i.e. before getting into the main body of the evidence) and the hearing for that purpose was scheduled to take place in Toronto.
20Mr. Curtis demanded that the hearing, in its entirety, be held in Thunder Bay, and when the Board refused to accede to this request, he withdrew his complaints. The withdrawal is dated July 28, 1992.
21But that was not the end of the matter. Mr. Curtis then complained to the Ombudsman, who undertook an investigation of the process that the Board had followed in the case. I do not know what that investigation involved; however, on February 3, 1993 the Ombudsman issued her report. She concluded that, in all the circumstances, the Board had not acted unreasonably.
22This complaint (No. 3527-92-U) was filed a month later, on March 4,1993.
23Complaint 3891-91-U (the financial records complaint) came on for hearing before a panel of the Board, in Thunder Bay, in mid-June 1993. The complaint was dismissed on August 17, 1993.
24The Board decision of August 17, 1993 speaks for itself and need not be repeated here. It suffices to say that the Board found that there was no breach of the Act, and that even if there had been a breach of the Act, there was no basis for any of the remedies which Mr. Curtis sought. The Board noted that Local 134 was moribund; and that while there had certainly been shoddy record-keeping in the period March 31, 1991 - December 31, 1992 (i.e. in the eighteen months or so after the mill closed), the Board could not conclude that there was any impropriety, or any basis for any further Board action. The Board wrote, in part:
"Insofar as directing the wide distribution by the responding party of the Busset report [on the financial affairs of Local 134] we are not satisfied that such a remedy is appropriate or would serve any useful labour relations purpose. Most of the individuals affected have long since severed their direct and active ties with the Local. Apart from the complainant, it does not appear that the lack of information now and heretofore provided has generated any serious concern..."
25With that background, then, I turn to this complaint, No. 3527-92-U, filed on March 4, 1993.
III
26When one compares the allegations in the instant complaint (3527-92-U) with the allegations in the earlier two complaints (1981-91-U, 3671-91-U), it is apparent that the contentions relate to essentially the same time period and essentially the same behaviour. As before, there are assertions about: the 1990 bargaining and ratification of the collective agreement; the complainant's role as editor of a newsletter; the complainant's removal from office in or after October 1990 and his relationship with the company, local union officials and CPU officers thereafter; his three-day suspension in August 1989; his discharge in February 1991 as a result of his activities in connection with an allegedly unlawful strike; the dispute about who had the right to select an arbitration panel or retain counsel; the company's refusal to deal with the complainant because he was no longer an employee and/or an officer of the local union; the charges brought under the Union Constitution in April-May 1991; the plant shut-down and the complainant's severance entitlement, if any, because he was not then an active employee; the letter of understanding settling various grievances, the way in which the settlements were ratified, and the complainant's personal severance entitlements.
27In other words, this "new" complaint (No. 3527-92-U) involves, in substance, a re-filing of the two earlier complaints which were withdrawn in July 1992. What the complainant seeks to do through the vehicle of a new complaint is litigate, in Thunder Bay, the allegations which were scheduled for hearing in the Summer of 1992, then withdrawn when the Board did not accede to his request to have the entire hearing in Thunder Bay.
28In my view, this is vexatious and an abuse of process which should not be entertained.
IV
29Section 91 of the Labour Relations Act is permissive. The Board has a discretion whether or not to inquire into an unfair labour practice complaint. The Board need not proceed simply because a complaint has been filed. And, in my view, that discretion under section 91 should be exercised against inquiring into the instant complaint.
30As a practical matter, Local 134 no longer exists. Nor does the Abitibi-Price mill in thunder Bay. Nor does the CPU - at least as formerly constituted. Against that background, I see little purpose in a multi-day inquiry into the political wrangling within Local 134 in 1990-91, or the relationship between Local 134 and the CPU, or the complainant's grievances against various CPU officers. Such inquiry would be an expensive and largely academic exercise, serving no labour relations purpose other than to provide the complainant with a forum to pursue political grievances, some of which are not properly the subject of section 69 in any event.
31The Board does not ordinarily award "costs" (i.e. require the losing party to pay the litigation costs of the winner), but this does not mean that the litigation process is costless to the parties or the public. Before embarking upon a time-consuming and costly exercise, engaging the time of lawyers, public adjudicators, and witnesses who might be compelled (by subpoena or otherwise) to testify or answer charges about what happened in 1990-91, I think the Board should be satisfied that some tangible policy or labour relations interest would be served by that exercise. I am not persuaded that any such interest would be served in this case; moreover, I do not think that the complainant should be entitled, now, to attack or seek to unravel a settlement from which he has derived substantial financial benefit. Nor would most of the remedies the complainant seeks appear to be appropriate. As noted, the Board does not award "costs" (one of the things he seeks) and, for example, I do not see what labour relations purpose would be served by requiring the CEPU (i.e. the new amalgamated union) to post notices or run newspaper advertisements concerning the way in which the CPU or its officers once dealt with the now defunct Local 134 or its members.
32More fundamentally, though, this complaint (No. 3527-92-U) is a transparent attempt to revive and relitigate the very complaints which were withdrawn in July 1992. Whatever the circumstances surrounding that withdrawal, I do not think that it is open to the complainant to file essentially the same charges seven months later. In my view, that is not an appropriate use of the complaint mechanism provided under section 91, nor would it be fair to the other parties to require them to defend against allegations withdrawn in July 1992.
33For the foregoing reasons, and in the exercise of the Board's discretion under section 91, this complaint is dismissed.